Appeals Court Denies TV Network Bid to Re-Hear Aereo Case

By Don Jeffrey -
Jul 16, 2013

The broadcast television networks,
which failed to persuade a panel of federal appeals judges to
shut down the Barry Diller-backed online TV service Aereo Inc.,
lost a bid to have the case reheard by the full appellate court.

The U.S. Court of Appeals in New York found in a 2-1 ruling
in April that Aereo doesn’t violate the networks’ copyrights for
programs because its transmissions to subscribers aren’t public
performances, which would require a license. In a filing today,
the appeals court said it won’t review the case.

“An active judge of the court requested a poll on whether
to rehear the case,” the appeals court said in its order,
adding that a majority of justices didn’t favor a review by the
full court, which is known as en banc.

Broadcasters including Walt Disney Co. (DIS)’s ABC, Comcast
Corp. (CMCSA)’s NBC and CBS Corp. (CBS) had asked the Second Circuit appeals
court to overturn a July 2012 order by U.S. District Judge
Alison Nathan denying a preliminary injunction that would have
put New York-based Aereo out of business. U.S. Circuit Judge
Denny Chin dissented from the majority opinion. Chin and U.S.
Circuit Judge Richard Wesley dissented from today’s court order.

The networks sued Aereo in March 2012, claiming that it
infringed copyrights by capturing their over-the-air signals and
retransmitting the programming to subscribers on computers and
smartphones. They said the service would devalue their
programming and cut viewership, jeopardizing revenue from
advertisers and pay-TV providers.

‘Not Surprised’

Aereo has filed a motion in district court to dismiss the
broadcasters’ lawsuit and Nathan hasn’t ruled on it. If she
denies the motion, the case could go to trial.

“We are not surprised by this decision, given that
requests for a full en banc hearing are rarely granted,” Dennis Wharton, a spokesman for the trade group the National
Association of Broadcasters, said in an e-mail. “We believe
that the broadcasters will prevail when this case goes to trial,
and that Aereo will be declared a copyright infringer.”

Scott Grogin, a spokesman for News Corp.’s Fox Television
Stations, another plaintiff in the case, said in an e-mailed
statement that Fox is reviewing its options, which include
seeking a hearing by the U.S. Supreme Court.

Rooftop Antennas

Aereo said its service allows subscribers to record and
play back broadcast network programming using remotely located
individual antennas and digital video recorders. The company
said its technology can be compared to the rooftop antennas and
rabbit ears used to bring over-the-air TV signals into the home
for free.

“We are pleased by the further ruling in favor of Aereo,”
Virginia Lam, a spokeswoman for the company, said in an e-mail.

Bloomberg LP, which owns Bloomberg News, is an Aereo
partner and offers its cable channel on the service.

The appeals are American Broadcasting Cos. v. Aereo,
12-02807, and WNET v. Aereo, 12-02786, U.S. Court of Appeals for
the Second Circuit (Manhattan). The lower-court cases are
American Broadcasting Cos. v. Aereo, 12-cv-01540, and WNET v.
Aereo, 12-cv-01543, U.S. District Court, Southern District of
New York (Manhattan).